Keywords
Summary

Keywords

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1. Competition ° Agreements, decisions and concerted practices ° Restriction on competition ° Prohibition on resale and exports

(EEC Treaty, Art. 85(1))

2. Competition ° Agreements, decisions and concerted practices ° Agreements between undertakings ° Effect on trade between Member States ° Criteria ° Insignificant effect on the market ° Agreement not prohibited

(EEC Treaty, Art. 85(1))

3. Competition ° Agreements, decisions and concerted practices ° Restriction on competition ° Criteria for assessment ° Anti-competitive object ° Sufficient

(EEC Treaty, Art. 85(1))

4. Competition ° Administrative procedure ° Investigation of complaints ° Consideration of the Community' s interest in investigating a case ° Criteria for assessment

(EEC Treaty, Arts 89(1) and 155)

5. Competition ° Administrative procedure ° Hearings ° Minutes ° Notification to parties ° Purpose ° Language in which drawn up

(Commission Regulation No 99/63, Art. 9(4))

6. Competition ° Community rules ° Infringements ° Carried out intentionally ° Meaning

(Regulation No 17 of the Council, Art. 15(2))

7. Competition ° Fines ° Assessment in relation to the undertaking' s own conduct ° No penalty imposed on another trader ° Irrelevant

(Regulation No 17 of the Council, Art. 15(2))

8. Competition ° Fines ° Amount ° Determination ° Criteria ° Total turnover of the undertaking concerned ° Turnover in the goods to which the infringement relates ° Each taken into account ° Limits

(Regulation No 17 of the Council, Art. 15(2))

Summary

1. By its very nature, a clause prohibiting exports constitutes a restriction on competition, whether it is adopted at the instigation of the supplier or of the customer, since the agreed purpose of the contracting parties is to endeavour to isolate a part of the market.

2. To be capable of affecting trade between Member States within the meaning of Article 85(1) of the Treaty, a decision, an agreement or a concerted practice must make it possible to foresee with a sufficient degree of probability, on the basis of a set of objective elements of law or fact, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States capable of hindering the attainment of a single market between States. That influence must also be appreciable, which means that even an agreement according absolute territorial protection may escape the prohibition laid down in Article 85 of the Treaty if those concerned hold only a weak position on the market for the products in question.

3. The fact that a clause in an agreement between undertakings, whose object is to restrict competition, has not been implemented by the contracting parties is not sufficient to remove it from the prohibition in Article 85(1) of the Treaty.

4. The extent of the Commission' s obligations in matters of competition law must be considered in the light of Article 89(1) of the Treaty, which constitutes, with regard to those matters, the specific expression of the general supervisory role conferred on the Commission by Article 155 of the Treaty. In that regard, in order to assess the Community' s interest in pursuing the investigation of a case, the Commission must take account of the circumstances of the individual case and the matters of fact and of law contained in the complaint submitted to it.

5. Article 9(4) of Regulation No 99/63, under which the essential content of the statements made by each person heard are to be recorded in minutes which are to be read and approved by him, requires the Commission to send a copy of the minutes to the parties in order to enable them to check that their statements have been recorded correctly, but when, having regard to the fact that the participants have used different languages, the minutes are themselves drawn up in several languages, it does not require the Commission to ensure that the statements made by the other parties are translated.

6. For an infringement of the Treaty' s competition rules to be considered to have been committed intentionally, it is not necessary for the undertaking to have been aware that it was infringing a prohibition laid down by those rules; it is sufficient that it was aware that the object of the offending conduct was to restrict competition.

7. When an undertaking' s conduct has infringed Article 85(1) of the Treaty, it cannot escape without penalty on the ground that another trader has not been fined, when that trader' s circumstances are not even the subject of proceedings before the Community judicature.

8. The amount of the fine imposed for an infringement of the Treaty' s competition rules must be fixed at a level which takes account of the circumstances and the gravity of the infringement and the latter is to be appraised taking into account in particular the nature of the restrictions on competition. With regard to consideration of the turnover of the undertaking in order to fix the fine, it is permissible to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. It follows that it is important not to attribute to either of those figures a significance which is disproportionate in relation to the other factors relevant to an assessment and, consequently, that an appropriate fine cannot be fixed merely by a simple calculation based on the total turnover.